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Mills v Silver [1991] Ch 271, CA

Property Law - Easement - Right of Way - Access to Property - Presumption of lost grant

Facts:

Silver purchased a hill farm which only had one access for vehicles, which was along the track over Mill’s adjourning farm. The previous owner had used this access freely, although not regularly when the track was dry enough. Silver did not often use the track and never sought permission to use the track. He employed a third party to lay stones on the track so it was useable in all weather. Mills sought an injunction.

Issues:

Whether toleration of use was sufficient to prevent the acquisition of a vehicle right of way. Whether the access amounted to trespass entitling Mills to damages.

Held:

The appeal was allowed. In order to show that there was an implied right of way for vehicle access, it was not enough to show that the previous owner’s use of the access to the property had been tolerated by Mills. It had to be shown to have been sufficient to warrant the implication of a lost modern grant by sufficient and open use being clearly established. It was not enough to assume access because Mills had tolerated the use of his land. Silver was entitled to repair the track for use, but not improve it. Improving the track had increased the burden of the servient tenement which had not been authorised, particularly where no prescriptive right existed. Mills was entitled to damages as the unauthorised improvements to the track amounted to trespass.


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